Supreme Court Urged to Grant Standing in Surveillance Challenge

In its new term that began yesterday, the U.S. Supreme Court will hear arguments over whether to affirm the right of journalists and human rights organizations to challenge the constitutionality of the Foreign Intelligence Surveillance Act (FISA) Amendments Act, or FAA.

The FISA Amendments Act authorizes the collection of a broad swath of public communications without a warrant (though not the intentional targeting of the communications of any particular U.S. person).  As such, critics say, it jeopardizes freedom of communication with individuals abroad.

At issue is whether the plaintiffs, represented by the American Civil Liberties Union, have the “standing” to bring the case.  A lower court said they did not, but an appeals court said they did.  It will be up to the Supreme Court to decide the case, which is captioned Amnesty et al v. Clapper.

The Electronic Privacy Information Center filed an amicus brief (which I co-signed) urging the Court to affirm standing on grounds that the plaintiffs have established a reasonable concern about the security of their communications, and that existing oversight mechanisms are inadequate.

“This threat to privacy is especially acute given the capabilities of the National Security Agency and the absence of meaningful oversight. Where enormous surveillance capabilities and blanket secrecy coexist, the public may reasonably fear the interception and collection of private communications,” the EPIC brief stated.

Furthermore, the current structure “lacks significant public oversight and accountability.”

“The public, the judiciary (but for the FISC [Foreign Intelligence Surveillance Court]) and almost all Members of Congress are kept in the dark as to the most extensive electronic surveillance program undertaken by the US government. While the DNI and Attorney General provide internal reporting requirements, none of this information is made available to the whole Congress or the public broadly, and thus no meaningful public oversight can occur.”

“When the law gives new authority to conduct electronic surveillance, there should also be new means of oversight and accountability. The FISA Amendments Act fails this test,” the brief said.